Forward Montana v. State

2024 MT 75, 546 P.3d 778

Opinion

04/09/2024

DA 22-0639 Case Number: DA 22-0639

IN THE SUPREME COURT OF THE STATE OF MONTANA

2024 MT 75

FORWARD MONTANA; LEO GALLAGHER; MONTANA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; GARY ZADICK,

Plaintiffs and Appellants,

v.

THE STATE OF MONTANA, by and through GREG GIANFORTE, Governor,

Defendant and Appellee.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV-2021-611 Honorable Mike Menahan, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Raph Graybill, Graybill Law Firm, PC, Great Falls, Montana

Rylee Sommers-Flanagan, Constance Van Kley, Upper Seven Law, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Brent Mead, Deputy Solicitor General, Helena, Montana

Emily Jones, Special Assistant Attorney General, Jones Law Firm, PLLC, Billings, Montana

Submitted on Briefs: November 29, 2023 Decided: April 9, 2024

Filed:

r-GtA•-if __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Forward Montana, Leo Gallagher, Montana Association of Criminal Defense

Lawyers, and Gary Zadick (Appellants) appeal from a September 16, 2022 order of the

First Judicial District Court denying attorney fees under the private attorney general

doctrine (“Private AG Doctrine” or “the Doctrine”) and under the Uniform Declaratory

Judgments Act (UDJA), § 27-8-313, MCA. We reverse and remand to the District Court

for calculation of attorney fees.

¶2 We restate the issue on appeal as follows:

Was it an abuse of discretion for the District Court to deny Appellants’ attorney fees under the private attorney general doctrine?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The Montana Legislature passed Senate Bill 319 (SB 319) during the 2021

legislative session. The Bill—originally a regulation of joint political fundraising

committees—proceeded normally through the legislative process (introduced in Senate,

passed through the Senate Committee on State Administration, passed on the Senate floor,

passed as amended through the House Committee on State Administration, passed as

amended on the House floor). Each of these steps included a public process, and citizen

testimony was provided in both committees. The House passed and transmitted a slightly

amended version back to the Senate. The Bill’s sponsor recommended the Senate not

concur with the amendments so a committee could “review those amendments.”

¶4 A free conference committee consisting of members of both houses was appointed.

The committee did not discuss the House amendments at all. Instead, on April 27, 2021—

2 two days before the Legislature adjourned—the free conference committee used the

opportunity to include four new sections to the Bill during a 17-minute meeting, closed to

public comment. Several of these last-minute amendments came almost verbatim from a

Bill that had recently failed to pass in the legislative session. See S.B. 318, § 4(1)(E)(v),

(F), 67th Leg., Reg. Sess. (Mont. 2021) (rejected on House floor April 15, 2021); compare

S.B. 319.5, § 22, 67th Leg., Reg. Sess. (Mont. 2021) (adopted during last-minute,

closed-door session April 27, 2021). The Bill as amended then passed both houses in the

last 24 hours of the 2021 legislative session.

¶5 On June 1, 2021, Appellants challenged two of these amendments based on

Article V, Section 11(6), of the Montana Constitution, which allows a person to challenge

a statute “on the ground of noncompliance with [Section 11] only within two years after its

effective date.” Among other allegations of unconstitutionality, Appellants challenged

Sections 211 and 222 of SB 319 as violative of two sections of the Montana Constitution:

Article V, Sections 11(1) and (3). Article V, Section 11(1), requires that “[a] law shall be

passed by bill which shall not be so altered or amended on its passage through the

legislature as to change its original purpose.” (Rule on Amendments.) Article V,

Section 11(3), requires that “[e]ach bill, except general appropriation bills and bills for the

codification and general revision of the laws, shall contain only one subject, clearly

expressed in its title.” (Single Subject Rule.)

1 Section 13-35-242, MCA (2021 Mont. Laws ch. 494, § 21). 2 Section 3-1-609, MCA (2021 Mont. Laws ch. 494, § 22).

3 ¶6 On June 4, 2021, Appellants filed a Verified Amended Complaint and an

Application for Preliminary Injunction to preserve the status quo while the merits of the

case were heard, as the laws were set to go into effect on July 1, 2021. The Attorney

General responded to Appellants’ motion for preliminary injunction on June 21, arguing

Appellants did not have legal standing to challenge the law, and that they had not satisfied

the legal standard for obtaining a preliminary injunction. The District Court held a

show-cause hearing on June 28 and granted Appellants’ motion on July 1, preliminarily

enjoining the enforcement of SB 319, Sections 21 and 22. On August 4, the Attorney

General filed a motion to dismiss, arguing again that Appellants did not have standing to

challenge the laws and that they had failed to state a claim upon which relief could be

granted under M. R. Civ. P. 12(b)(6).

¶7 On August 18, Appellants filed a Motion for Summary Judgment on their claims

under Article V, Section 11. Appellants argued there were no genuine disputes of material

fact, and they were entitled to judgment as a matter of law. The State filed a motion to stay

the decision on Appellants’ motion for summary judgment until its motion to dismiss was

resolved and until it could conduct discovery into Appellants’ claims regarding standing.

¶8 The District Court ruled that Appellants had standing to bring the lawsuit and denied

the State’s motion to dismiss on October 6. The court further found that additional

discovery was unnecessary on the two constitutional claims in Appellants’ summary

judgment motion and stayed discovery until resolution of that motion. Thereafter, the State

responded to Appellants’ motion for summary judgment. The State again argued that

Appellants lacked standing and that the sections at issue were not unconstitutional. The

4 court held oral argument on the motion for summary judgment on January 25, 2022, and

issued its order on February 3.

¶9 The court found that SB 319 contained two subjects unrelated to campaign finance

(the original subject of SB 319) because Section 21 banned select campaign activities3 and

had no effect on campaign contributions, spending, or disclosures, and because Section 22

3 Section 21 reads: Political activity in public postsecondary institution residence hall, dining facility, or athletic facility -- prohibition -- exceptions -- penalty. (1) A political committee may not direct, coordinate, manage, or conduct any voter identification efforts, voter registration drives, signature collection efforts, ballot collection efforts, or voter turnout efforts for a federal, state, local, or school election inside a residence hall, dining facility, or athletic facility operated by a public postsecondary institution. (2) Nothing in this section may be construed as prohibiting any communications made through mail, telephone, text messages, or electronic mail inside a residence hall, dining facility, or athletic facility or any political advertising made through radio, television, satellite, or internet service. Nothing in this section may be construed as prohibiting an individual from undertaking or participating in any activity for a federal, state, local, or school election if the activity is undertaken at the individual’s exclusive initiative. (3) A person who resides in a residence hall operated by a public postsecondary institution or who regularly uses a dining hall operated by public postsecondary institution, a candidate for office in a federal, state, local, or school election, or a political committee engaged in a federal, state, local, or school election may institute an action in any court of competent jurisdiction to prevent, restrain, or enjoin a violation of this section. (4) A political committee that violates this section is subject to a civil penalty of $1,000 for each violation. Each day of a continuing violation constitutes a separate offense. (5) For the purposes of this section, “public postsecondary institution” means: (a) a unit of the Montana university system as described in 20-25-201; or (b) a Montana community college defined and organized as provided in 20-15-101.

Section 13-35-242, MCA (2021).

5 regulated judicial recusal4 rather than limiting campaign contributions or reporting

requirements. It was thus in violation of Article V, Section 11(3), of the Montana

Constitution. The court further found that Sections 21 and 22 amended SB 319 to the

extent that its original purpose was changed in violation of Article V, Section 11(1), of the

Montana Constitution. The court permanently enjoined enforcement of Sections 21 and

22 as violative of Article V, Sections 11(1) and (3), of the Montana Constitution. It then

certified its prior judgment as a final judgment subject to immediate appeal.

¶10 In a tacit acknowledgment that the Bill was unconstitutional, the State filed a notice

that it was waiving appeal of the District Court’s order.5 The order thus became law.

See Jonas v. Jonas, 2013 MT 202, ¶ 21, 371 Mont. 113, 308 P.3d 33 (“[A] legal decision

made at one stage of litigation which is not appealed when the opportunity to do so exists,

4 Section 22 reads: Judicial conflict of interest -- recusal -- definition. (1) A judicial officer shall disqualify the judicial officer in a proceeding if: (a) the judicial officer has received one or more combined contributions totaling at least one-half of the maximum amount allowable amount under 13-37-216 from a lawyer or party to the proceeding in an election within the previous 6 years; or (b) a lawyer or party to the proceeding has made one or more contributions directly or indirectly to a political committee or other entity that engaged in independent expenditures that supported the judicial officer or opposed the judicial officer’s opponent in an election within the previous 6 years if the total combined amount of the contributions exceed at least one-half of the maximum amount that would otherwise be allowed under 13-37-216 if the contributions had been made directly to the judicial candidate. (2) For the purposes of this section: (a) “contribution” has the meaning provided in 13-1-101; and (b) “judicial officer” has the meaning provided in 1-1-202.

Section 3-1-609, MCA (2021). 5 By doing so, the fee ultimately awarded in this Opinion will be decreased.

6 becomes the law of the case for the future course of that litigation.” (internal quotation

omitted)). Section 13-35-242, MCA (2021), and § 3-1-609, MCA (2021), repealed 2023

Mont. Laws ch. 433, § 2, are thus unconstitutional and void.

¶11 Thereafter, Appellants moved for attorney fees under the Private AG Doctrine;

§ 25-10-711, MCA; and under the UDJA, § 27-8-313, MCA. The District Court declined

to award attorney fees. Under the Private AG Doctrine, the court found that Appellants

had satisfied all three factors required for attorney fees under Montanans for the

Responsible Use of the School Trust v. State ex rel. Bd. of Land Comm’rs, 1999 MT 263,

¶¶ 66–67, 296 Mont. 402, 989 P.2d 800 (Montrust). Nevertheless, the court considered

equity and immunity principles and found that this case was a “garden-variety”

constitutional challenge undeserving of attorney fees under the Doctrine. The court also

denied fees under § 25-10-711, MCA, finding the Attorney General did not act frivolously

or in bad faith in defending the Bill, and under the UDJA, finding this case did not present

circumstances making fees equitable. Appellants appealed the court’s decision under the

Private AG Doctrine and the UDJA but did not appeal the court’s decision regarding

§ 25-10-711, MCA.

STANDARD OF REVIEW

¶12 We review de novo a district court’s conclusion on whether legal authority exists to

support an award of attorney fees. City of Helena v. Svee, 2014 MT 311, ¶ 7, 377 Mont.

158, 339 P.3d 32. If legal authority exists, we review for an abuse of discretion the court’s

order granting or denying fees. Svee, ¶ 7. An abuse of discretion exists if the district court

7 acted arbitrarily, without the employment of conscientious judgment, or exceeded the

bounds of reason resulting in substantial injustice. Montrust, ¶ 68.

DISCUSSION

¶13 Was it an abuse of discretion for the District Court to deny Appellants’ attorney fees under the private attorney general doctrine?

¶14 When it comes to attorney fees, Montana follows the American rule—absent

specific statutory or contractual provisions, prevailing parties are generally not entitled to

recovery of their attorney fees in prosecuting or defending an action. W. Tradition P’ship

v. Att’y Gen., 2012 MT 271, ¶ 9, 367 Mont. 112, 291 P.3d 545. We recognize several

equitable exceptions to the American rule, but we construe them narrowly so the exceptions

do not swallow the rule. W. Tradition P’ship, ¶ 9.

¶15 One of these narrow equitable exceptions to the American rule is the Private AG

Doctrine, which we adopted from Serrano v. Priest, 569 P.2d 1303 (Cal. 1977). Montrust,

¶ 67. The party seeking attorney fees must show three basic equitable considerations under

the Doctrine: “(1) the strength or societal importance of the public policy vindicated by the

litigation, (2) the necessity for private enforcement and the magnitude of the resultant

burden on the plaintiff, [and] (3) the number of people standing to benefit from the

decision.” Montrust, ¶ 66 (quoting Serrano, 569 P.2d at 1314). The District Court found

that Appellants met all three factors under Montrust. However, the court concluded the

case was a “‘garden-variety’ declaratory judgment action,” which was not deserving of

attorney fees.

8 ¶16 Generally, attorney fees under the first factor of the Doctrine have been applied in

cases vindicating constitutional interests so that courts will not be in the role of assessing

public policies better left to the Legislature. Bitterroot River Protective Ass’n v. Bitterroot

Conservation Dist., 2011 MT 51, ¶ 22, 359 Mont. 393, 251 P.3d 131; see also Serrano,

569 P.2d at 1314. However, this factor does not require a litigant to bring a direct

constitutional challenge. See Burns v. Cty. of Musselshell, 2019 MT 291, ¶¶ 14–16, 398

Mont. 140, 454 P.3d 685; see also Clark Fork Coal. v. Tubbs, 2017 MT 184, ¶¶ 17–22,

388 Mont. 205, 399 P.3d 295 (comparing cases).

¶17 As discussed below, this factor is satisfied here. Appellants challenged Sections 21

and 22 purely on constitutional grounds and won summary judgment on their claims under

Article V, Section 11, of the Montana Constitution. See Burns, ¶ 21 (“It is the vindication

of constitutional interests that demonstrates the societal importance of the litigation.”).

This case falls squarely within the courts’ important role in enforcing constitutional checks

on the legislative power.

¶18 The Dissent suggests that even though significant constitutional interests were

vindicated in Western Tradition Partnership, we held these were not enough under the first

factor. See Dissent, ¶ 53. However, our holding in Western Tradition Partnership

recognized that “even though ATP vindicated principles of constitutional magnitude, the

State’s defense also was grounded in constitutional principles and in an effort to enforce

interests the executive deemed equally significant to its citizens.” W. Tradition P’ship,

¶ 20 (emphasis added). The important constitutional interests at stake in Western Tradition

Partnership are not in dispute. Our holding shows that both sides had important

9 constitutional interests they were trying to vindicate. Here, however, Appellants alone

were vindicating important constitutional interests. The Legislature disregarded its

constitutional limitations, and the Attorney General offered no substantive or constitutional

interests in defense of these actions.

¶19 We have discussed that the separation of powers cautions us to avoid interfering

with other branches under the first factor. W. Tradition P’ship, ¶ 16. For example, in

determining if fees under the Doctrine were appropriate in Western Tradition Partnership,

we held that awarding attorney fees against the Attorney General was improper in a “garden

variety” constitutional challenge that the Attorney General had chosen to defend because

his arguments were not frivolous or in bad faith. W. Tradition P’ship, ¶¶ 17–18, 20.

Indeed, because of our reluctance to invade the province of another coequal branch of

government, we looked closely at whether the Attorney General defended the law in bad

faith. We held that the Attorney General’s defense was far from frivolous because five

members of this Court were convinced of the argument’s merit in a prior decision; both the

plaintiff’s and the State’s arguments were grounded in equally significant constitutional

principles; the statute the Attorney General was defending had century-old roots in

Montana history; the statute had been enacted by initiative of the people to combat

corruption which had entangled state judges and a U.S. senator from Montana; and the

challenge had been brought in a time of shifting legal landscapes given recent U.S.

Supreme Court cases. W. Tradition P’ship, ¶ 20.

¶20 Here, we do not hold attorney fees are proper because of the Attorney General’s

defense of the law, which included a challenge to Appellants’ standing at different stages

10 of the litigation as well as defenses on the merits of the Bill. Rather, we conclude that

attorney fees are proper in this case because of the process through which the

unconstitutional sections of this Bill came to be: an obviously unlawful Bill adopted

through willful disregard of constitutional obligations.

¶21 Initially, however, we address the State’s argument that statutory immunity requires

the denial of fees in this case. This argument stems from Finke v. State ex rel. McGrath,

2003 MT 48, ¶¶ 33–34, 314 Mont. 314, 65 P.3d 576, where we held attorney fees were

improper against the defendant counties and State:

Defendant Yellowstone County advances several arguments against the award of attorneys’ fees in this case, but the one we find most persuasive is that it would be unjust to force the Counties to pay for the unconstitutional actions of the Legislature. The award of attorneys’ fees, when not statutorily mandated, is within the discreet and inherent equitable powers of the judiciary. While under the private attorney general doctrine, it may be considered equitable to award attorneys’ fees to Finke, we conclude that the inequity of imposing those fees against the Defendant Counties who neither fashioned nor passed the unconstitutional law is overriding. The only entity remaining against whom fees could be assessed is the State of Montana. The claim against the State in the case at bar is for injunctive relief against enforcement of SB 242. The Plaintiffs did not specifically seek attorneys’ fees from the State, and the claim for injunctive relief simply does not provide a basis for the imposition of attorneys’ fees against the State. In fact, the only potential liability of the State for fees would lie for the actions of the Legislature in enacting an unconstitutional bill, as it is the enactment of SB 242 that prompted the filing of this action. However, § 2-9-111, MCA, provides that the Legislature, as a governmental entity, is immune from suit for any legislative act or omission by its legislative body. There is, therefore, no avenue whereby attorneys’ fees could be imposed against the State in this matter.

(Internal citations omitted and emphasis added.) The State thus argues that we cannot

impose attorney fees when our only finding is that the Legislature enacted an

unconstitutional Bill. This is incorrect for several reasons. First, the holding of Finke as

11 it applied to attorney fees against the State was that plaintiffs had not sought fees against

the State and thus could not recover fees from it—everything else was dicta.

See In re Marriage of Pfeifer, 1998 MT 228, ¶ 24, 291 Mont. 23, 965 P.2d 895 (“[B]ecause

we had resolved the issues before us prior to that [relied upon statement], it is clear that the

statement was not necessary to the decision and was, instead, obiter dictum. Consequently,

it was not a principle or rule of law necessary to our decision so as to implicate the law of

the case.”).

¶22 Second, a reading of the statute (§ 2-9-111, MCA) mentioned in Finke does not lead

to the conclusion that it prohibits attorney fees against the State. Section 2-9-111(2), MCA,

provides that governmental entities (including the State) are “immune from suit” for

legislative acts or omissions. If taken literally, a suit seeking a declaration that a law is

unconstitutional or to enjoin its enforcement would be prohibited. This clearly is not the

case. See, e.g., Mont. Const. art. V, § 11(6); § 27-8-202, MCA (allowing suits concerning

the validity of statutes).

¶23 Rather, we have held that § 2-9-111, MCA, immunizes governmental entities from

torts committed by legislative acts or omissions. See, e.g., Knight v. Missoula, 252 Mont.

232, 245, 827 P.2d 1270, 1278 (1992); Massee v. Thompson, 2004 MT 121, ¶¶ 77–78,

321 Mont. 210, 90 P.3d 394 (Nelson, J., specially concurring) (collecting cases); Denke v.

Shoemaker, 2008 MT 418, ¶ 54, 347 Mont. 322, 198 P.3d 284 (explaining that § 2-9-111,

MCA, is a narrow exception to Article II, Section 18, of the Montana Constitution, which

provides that governmental entities have no immunity from suit for injury to person or

property unless specifically provided by law by a two-thirds vote of the Legislature). This

12 reading is consistent with the plain meaning of the statute and the rest of Title 2, chapter 9,

part 1, of the Montana Code. See § 2-9-111(5), MCA (specifically exempting some torts

from immunity); § 2-9-101(1), MCA (defining “claim” to include suits for money damages

for personal injury or property damage arising from “negligent or wrongful act[s] or

omission[s]”). Thus, although § 2-9-111, MCA, provides immunity to the State for

damages arising in tort caused by legislative acts or omissions, it does not provide

immunity against a declaratory judgment action that a law is unconstitutional—or from an

equitable grant of attorney fees in that action arising from unconstitutional actions of the

Legislature that plaintiffs are forced to litigate.

¶24 We have awarded attorney fees against the State in prior cases. See generally, e.g.,

Montrust, Burns. The purpose of the Doctrine is to “provide[] an incentive for parties to

bring public interest related litigation that might otherwise be too costly to bring.” Sunburst

Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 91, 338 Mont. 259, 165 P.3d 1079. If the

Doctrine was eliminated where the Legislature has willfully disregarded its constitutional

duties and purposefully passed unconstitutional laws, vindicating these important

constitutional rights through litigation would not be feasible.

¶25 Nevertheless, as we noted in Western Tradition Partnership, courts must use caution

in awarding fees against the State in “garden variety” constitutional challenges so as not to

improperly infringe on the separation of powers. W. Tradition P’ship, ¶¶ 16–17. That case

discussed attorney fees in relation to the Attorney General’s defense of the law and our

hesitation to interfere with the executive function of the State. W. Tradition P’ship, ¶ 16.

13 We thus looked at whether the Attorney General had defended the law frivolously or in

bad faith as a guidepost. W. Tradition P’ship, ¶ 18.

¶26 The Legislature must abide by the Constitution when enacting legislation to ensure

transparency and public participation. Mont. Const. art. V, § 11. The Single Subject Rule

is substantially unchanged from Article V, Section 23, of the 1889 Montana Constitution.

We stated that the purposes of this section:

are to restrict the legislature to the enactment of laws the subjects of which are made known to the lawmakers and to the public, to the end that anyone interested may follow intelligently the course of pending bills; to prevent the legislators and the people generally being misled by false or deceptive titles, and to guard against the fraud which might result from incorporating in the body of a bill provisions foreign to its general purpose and concerning which no information is given by the title.

State ex rel. Foot v. Burr, 73 Mont. 586, 588, 238 P. 585, 585 (1925). Similar policies lie

behind the Rule on Amendments, which has remained substantially unchanged from

Article V, Section 19, of the 1889 Montana Constitution. Undoubtedly, the Legislature is

aware of these constitutional duties and limitations, especially given these provisions’ long

history. Clark Fork Coal. v. Mont. Dep’t of Nat. Res. & Conservation, 2021 MT 44, ¶ 60,

403 Mont. 225, 481 P.3d 198. We have held that if “it is apparent that two or more

independent and incongruous subjects are embraced in its provisions, the Act will be held

to transgress [Article V, Section 11(3)], and to be void by reason thereof.” Evers v.

Hudson, 36 Mont. 135, 146, 92 P. 462, 466 (1907).

¶27 The District Court found, and the State does not dispute, that SB 319 was clearly in

contravention of the Single Subject Rule. Mont. Const. art. V, § 11(3). Prior to the free

conference committee, SB 319 contained only one subject—campaign finance. After the

14 committee meeting, SB 319 contained two additional subjects within Sections 21 and 22—

political activities in university facilities and judicial recusal.

¶28 In addition, the District Court found that these sections were in violation of the Rule

on Amendments, which requires Bills to not be so altered or amended during the legislative

process so as to change their original purpose. Mont. Const. art. V, § 11(1). Prior to the

free conference committee meeting, the Bill’s entire purpose was to revise campaign

finance laws regarding the establishment and regulation of joint fundraising committees.

After the meeting, the original purpose was changed to include regulations on political

activities on college campuses and judicial recusal. The violation is manifestly apparent

by examining SB 319’s title before and after the committee meeting:

AN ACT GENERALLY REVISING CAMPAIGN FINANCE LAWS; CREATING JOINT FUNDRAISING COMMITTEES; PROVIDING FOR CERTAIN REPORTING; ESTABLISHING THAT IF STUDENT ORGANIZATIONS THAT ARE REQUIRED TO REGISTER AS POLITICAL COMMITTEES ARE FUNDED THROUGH ADDITIONAL OPTIONAL STUDENT FEES, THOSE FEES MUST BE OPT-IN; PROHIBITING CERTAIN POLITICAL ACTIVITIES IN CERTAIN PLACES OPERATED BY A PUBLIC POSTSECONDARY INSTITUTION; PROVIDING FOR JUDICIAL RECUSALS UNDER CERTAIN CIRCUMSTANCES; PROVIDING PENALTIES; AND AMENDING SECTIONS [enumerated]; AND PROVIDING AN EFFECTIVE DATE.

S.B. 319.5, 67th Leg., Reg. Sess. (Mont. 2021) (underlines and strikethrough in original).

The nonunderlined portions of the title above show SB 319 prior to the free conference

committee. SB 319 had 22 sections prior to the committee meeting yet had a relatively

short title because it was a comprehensive Bill covering a single subject. By adding four

15 amendments (only two of which are at issue in this case), the committee more than doubled

the length of the original title with completely unrelated matters.

¶29 The State did not appeal these conclusions.

¶30 Again, legislative acts are at issue, and we use caution so as not to interfere with the

proper functioning of the legislative branch. We therefore find it a helpful guidepost to

look to the bad faith of the Legislature in enacting unconstitutional laws when deciding

whether attorney fees are proper under the Doctrine. See W. Tradition P’ship, ¶ 18. This

consideration is only an equitable guidepost rather than a requirement. As Serrano notes,

the concept of the Private AG Doctrine “seeks to encourage suits effectuating a strong

congressional or national policy by awarding substantial attorney’s fees, regardless of

defendants’ conduct, to those who successfully bring such suits and thereby bring about

benefits to a broad class of citizens.” Serrano, 569 P.2d at 1312. Further, this is only a

guidepost because if bad faith were a requirement under the equitable Doctrine, it would

be swallowed up by § 25-10-711, MCA. Cf. Montrust, ¶¶ 60–62. Nevertheless, it can be

helpful to discuss bad faith in fee requests against the State in order to not unnecessarily

interfere with other branches’ policy choices. W. Tradition P’ship, ¶ 16; Serrano, 569 P.2d

at 1313.

¶31 Bad faith can be seen through the process the Legislature used in passing these

obviously unconstitutional amendments. When the House and Senate pass different

versions of the same Bill and do not accept the other chamber’s amendments, the leadership

may appoint a conference committee to resolve the differences—confined to accepting,

rejecting, or amending only the disputed amendments. See Rules of the Montana

16 Legislature, 67th Leg., 30-30(1)–(2) (Mont. April 2021) (available at

https://perma.cc/74EA-TAQG) [hereinafter Legislature’s Rules]. However, leaders can

appoint a free conference committee which is able to “discuss and propose amendments to

a bill in its entirety and is not confined to a particular amendment. However, a free

conference committee is limited to consideration of amendments that are within the scope

of the title of the introduced bill.” Legislature’s Rules, 30-30(3)(a) (emphasis added);

accord Mont. Const. art. V, § 11(1).

¶32 Here, a free conference committee was appointed. During the 17-minute meeting,

the committee adopted amendments that were, as noted above, clearly outside the scope of

the title of the introduced Bill.

¶33 The committee—consisting of legislators with more than 42 years of Montana state

legislative experience between them—undoubtedly were aware that there would be no

public participation, testimony, or public notice of the intended changes. Significantly,

some amendments consisted of provisions that had already been defeated in other Bills

during the legislative session—one of them having failed mere days before the free

conference committee meeting. Such practice is generally discouraged. Cf. Legislature’s

Rules, 40-70(1) (“A bill may not be introduced or received in a house after that house,

during that session, has finally rejected a bill designed to accomplish the same

purpose . . . .”); see also Legislature’s Rules, 40-90 (same as Mont. Const. art. V, § 11(1));

Legislature’s Rules, 60-05 (precedent of legislative rules).

¶34 We are not intruding on the Legislature or enforcing its own internal rules as the

Dissent suggests. See Dissent, ¶ 56. Rather, we use these examples to amplify the fact that

17 the Legislature was well aware that what they were doing was unconstitutional, which

serves as a strong showing of bad faith, a factor we consider as a guidepost in determining

that fees are proper here.

¶35 The first factor of Montrust is clearly met. The constitutional policies vindicated

here—to restrict legislative enactments to those made known to lawmakers and the public,

to prevent legislators and the people from being misled, and to guard against obfuscation

by the Legislature—are sufficiently weighty to justify fees. See Foot, 73 Mont. at 588, 238

P. at 585. Appellants vindicated important constitutional rights, and our typical judicial

restraint from interference with the proper functioning of other branches of government

was overcome by the willful disregard of constitutional standards in adopting these

Sections.

¶36 However, even when important interests are vindicated by the litigation, we still

look at the necessity for private enforcement and the magnitude of the burden on the

plaintiff under the second factor. Montrust, ¶ 66. As such, we consider whether invoking

the Doctrine provides an incentive for parties to bring public interest litigation that might

otherwise be too costly to bring. Sunburst, ¶ 91. Thus, when litigants are motivated

primarily by their own interests and only coincidentally protect the public interest, attorney

fees are inappropriate—such as where the litigation results in a monetary judgment for

plaintiffs. Sunburst, ¶ 91.

¶37 The Doctrine is applicable where private litigants must litigate because “the

government, for some reason, fails to properly enforce interests which are significant to its

citizens.” Bitterroot, ¶ 27 (internal quotation omitted); Burns, ¶ 13. Thus, we generally

18 do not apply the Doctrine when a government agency represents a public interest and

complies with its duties. In re Dearborn Drainage Area, 240 Mont. 39, 43, 782 P.2d 898,

900 (1989). However, we awarded attorney fees in Bitterroot where, although a

government agency was involved in the litigation, the agency did not appeal an adverse

decision and—against its objection—was joined as an involuntary party to other parts of

the litigation. Bitterroot, ¶ 32. Because the agency’s involvement “was hardly the usual

effort” of an agency seeking to enforce the law, private parties were forced to bear the brunt

of the litigation burden and full relief would not have been granted without their effort.

Bitterroot, ¶ 32.

¶38 The State does not dispute that Appellants bore a large burden in litigating the

constitutionality of Sections 21 and 22.6 Instead, it argues that Lewis and Clark County is

one of the Appellants, and therefore a government agency is litigating this matter. The

State’s argument is that since Leo Gallagher (one of the Appellants in this case) was Lewis

6 The Dissent also compares Western Tradition Partnership, which admittedly was a much more difficult and drawn-out case than here, for its argument that Appellants have not hit a threshold burden requirement to get fees under the second factor. See Dissent, ¶¶ 48–52. Appellees did not make any of these arguments to the District Court below or in briefing to us. The District Court said “[t]he State does not argue Plaintiffs did not bear the financial burden of litigating this constitutional issue,” and we reiterate in our holding that the State does not dispute this part of the second factor under the Doctrine. Instead, the State argues that private enforcement was not necessary because of the participation of a prior public official in the case. “It has long been the rule of this Court that on appeal we will not put a District Court in error for a ruling or procedure in which the appellant acquiesced, participated, or to which appellant made no objection.” State v. Gardner, 2003 MT 338, ¶ 44, 318 Mont. 436, 80 P.3d 1262 (internal quotation omitted); see also State v. Kearney, 2005 MT 171, ¶ 16, 327 Mont. 485, 115 P.3d 214 (“This Court will not consider unsupported arguments, locate authorities or formulate arguments for a party in support of positions taken on appeal.” (internal quotation omitted)).

19 and Clark County Attorney, the Court should conclude his participation is on behalf of

Lewis and Clark County and therefore there was no need for private enforcement.

¶39 This argument misconstrues Gallagher’s role in the case. Gallagher sued as a

private citizen who will be negatively affected by the recusal requirements of Section 22

in both his public and private work (now or in the future). If the State’s argument was

correct, our caption would read “Lewis and Clark County, by and through its County

Attorney,” rather than “Leo Gallagher.” See, e.g., Crites v. Lewis & Clark Cty., 2019 MT

161, 396 Mont. 336, 444 P.3d 1025. Gallagher verified the complaint personally and not

on behalf of the County. If he had participated on behalf of the County, he would have had

to state as such. See § 25-4-203, MCA. The verification stated “I, Leo Gallagher, being

first duly sworn, upon oath depose and say: 1. I am Plaintiff in the action set forth above,”

and it was signed by him personally, not on behalf of the County or in his role as county

attorney. (Emphasis added.) Although Section 22 would affect Gallagher in the cases he

litigates on behalf of the County, it would equally impact him, and other Appellants, in any

cases they litigate in private practice. Thus, Section 22 will affect Gallagher no matter

what job he holds, and he personally sued to prevent that.

¶40 Additionally, the complaint shows that Gallagher, in his personal capacity, has

contributed to judicial races in the past six years “[c]onsistent with his First Amendment

rights and commitment to civic life in Montana.” (Emphasis added.) Clearly Gallagher

was suing on behalf of his own constitutional rights. It would be illegal for Lewis and

Clark County to contribute to a candidate. Section 13-35-227(1), MCA. The District Court

did not abuse its discretion.

20 ¶41 Since the only governmental entity involved in this case was defending the statute,

private enforcement was necessary. “Although there are within the executive branch of

the government offices and institutions (exemplified by the Attorney General) whose

function it is to represent the general public in such matters and to ensure proper

enforcement, for various reasons the burden of enforcement is not always adequately

carried by those offices and institutions, rendering some sort of private action imperative.”

Serrano, 569 P.2d at 1313. The second factor of Montrust is met.

¶42 Finally, although we have not set a threshold number of people benefiting from the

decision to support attorney fees under the Doctrine, clearly issues of statewide importance

are sufficient to pass muster under the third factor. Bitterroot, ¶ 34; see also Burns, ¶ 23

(concluding an issue that would benefit all Musselshell County voters was sufficient to

meet the third factor). The State conceded this factor was met at the District Court because

the litigation involves a challenge enforcing important constitutional restraints affecting all

Montanans.

¶43 We note that Appellants seek compensation for 335.78 hours worked on the case,

totaling $105,119. We make no comment on the number of hours or the hourly rate that is

appropriate for the District Court to award on remand.

CONCLUSION

¶44 We affirm that all three of the Montrust factors support an award of attorney fees in

this case under the private attorney general doctrine. However, for the reasons stated herein

we conclude that the District Court’s finding that this case presented equitable

considerations which did not warrant attorney fees under the Doctrine was unreasonable

21 under these facts and as such was an abuse of discretion. Because we conclude fees are

warranted under the Doctrine, we do not reach the parties’ arguments under the UDJA.

¶45 We decline to award attorney fees on appeal.

¶46 Reversed and remanded to the District Court for consideration of attorney fees.

/S/ MIKE McGRATH

We Concur:

/S/ LAURIE McKINNON /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON

Justice Jim Rice, dissenting.

¶47 In my view, the Court’s reasoning regarding application of the private attorney

general doctrine (Doctrine) lacks merit under our precedent. I would conclude the District

Court did not abuse its discretion by denying fees under the Doctrine, which is to be

“invoked sparingly,” Western Tradition P’ship v. AG of Mont., 2012 MT 271, ¶ 13, 367

Mont. 112, 291 P.3d 545 (Western Tradition II), and affirm.

¶48 The Court reasons that Appellants “bore a large burden in litigating the

constitutionality” of SB 319. Opinion, ¶ 39. The burden of litigation borne here versus

the burden borne by the Plaintiffs in Western Tradition, which challenged § 13-35-227(1),

MCA, part of the original Corrupt Practices Act (Act), counsels otherwise. Here, the

Plaintiffs filed suit on June 1, 2021, filed application for a preliminary injunction on June 4,

and moved for summary judgment by August 18, 2021, six weeks later. The Attorney

22 General, acting to defend the bill, limited his defense to the issue of standing. When the

District Court entered summary judgment in favor of Plaintiffs, the Attorney General

“folded his hand” and gave notice he would not appeal from the judgment, conceding the

matter. The Attorney General thus acted prudently, in a manner that fulfilled his duty to

defend the challenged bill but which also did not unreasonably prolong the matter by

engaging in protracted litigation. The case was over.

¶49 In contrast, in Western Tradition, after likewise receiving an adverse summary

judgment ruling, in which the District Court, quoting Minnesota Chamber of Commerce v.

Gaertner, 710 F. Supp. 2d 868 (D. Minn. 2010), described the governing precedent from

the U.S. Supreme Court, as “unequivocal,”1 the Attorney General rejected this

“unequivocal” determination and extended the litigation by appealing to this Court. While

the nature of the interest at issue and the public import are discussed below, Western

Tradition involved free speech under the First Amendment, an issue which attracted much

public interest that necessarily complicated advocacy in the case. Leave to file amicus

briefs was sought and briefs were filed by The ACLU of Montana Foundation, The

Montana Trial Lawyers Association, Former Montana Supreme Court Justices William

Hunt, William Leaphart, James Regnier, Terry Trieweiler, and John Warner, Montana

Public Interest Research Group, The Peoples Power League, Montana Conservation

Voters, Montanans for Corporate Accountability, Montana League of Rural Voters, Free

1 See Western Tradition P’ship v. AG, 2011 MT 328, ¶ 8, 363 Mont. 220, 271 P.3d 1 (Western Tradition I), quoting the District Court (“Citizens United is unequivocal: the government may not prohibit independent and indirect corporate expenditures on political speech.”).

23 Speech for People, Novak Inc., d/b/a Mike’s Thriftway, The American Independent

Business Alliance, The American Sustainable Business Council, Domini Social

Investments, LLC, Trillium Asset Management Corporation, Newground Social

Investment, Interfaith Center on Corporate Responsibility, Harrington Investments, Inc.,

Loring, Wolcott & Coolidge Sustainability Group, Calvert Asset Management Company,

Inc., The Christopher Reynolds Foundation, Inc., Walden Asset Management, and the

Center for Competitive Politics. Pro hac vice and student practice motions were granted.

In contrast, there was no amici or outside involvement in Forward Montana.

¶50 During the appeal, the Western Tradition Plaintiffs were required to litigate

appellate procedural issues before this Court, including the Attorney General’s motion to

strike its reply brief. Following receipt of the party and amicus briefs, this Court set the

case for oral argument, in which counsel for Plaintiffs appeared and argued. Several

months later, this Court issued the decision, its collective opinions totaling 80 pages,

including vigorous dissents to the Court’s divided holding. The Dissenters would be

proven to be entirely correct that the Court’s decision was clearly and predicably wrong.

See Western Tradition I, ¶¶ 49, 50 (Baker, J., dissenting) (“Citizens United holds

unequivocally that ‘[n]o sufficient governmental interest justifies limits on the political

speech of nonprofit or for-profit corporations.’”); (“In my view, the State of Montana made

no more compelling a case than that painstakingly presented in the 90-page dissenting

opinion of Justice Stevens and emphatically rejected by the majority in Citizens United.

Though I believe Citizens United requires us to affirm the District Court, we must in any

event anticipate the consequences should the Court’s holding today be reversed.”);

24 see also Western Tradition I, ¶¶ 62, 73 (Nelson, J., dissenting) (“The [U.S.] Supreme

Court could not have been more clear in Citizens United . . . . This Court is simply wrong

in its refusal to affirm the District Court. Like it or not, Citizens United is the law of the

land as regards corporate political speech.”).

¶51 This Court’s erroneous decision in Western Tradition I, in which the undersigned

concurred, forced the Plaintiffs to continue the litigation yet further by preparing and filing

a petition for certiorari seeking review by the U.S. Supreme Court. Plaintiffs moved for a

stay of this Court’s decision pending appeal, and briefed the issue, but this Court denied

the request. Plaintiffs were then required to seek a stay of this Court’s decision from the

U.S. Supreme Court, which granted the stay. Regarding the Attorney General’s position

in defense of the Act, the Supreme Court declared “there can no serious doubt” that Citizens

United applied and invalidated the Act, reversing this Court’s decision. Am. Tradition

P’ship, Inc. v. Bullock, 567 U.S. 516, 516, 132 S. Ct. 2490, 2491.2

¶52 There is no need to say more—that is a heavy litigation burden. With all due respect

to the fine lawyering on behalf of the Plaintiffs here in Forward Montana, this case was a

cakewalk compared to Western Tradition, and the Court’s reliance on the heavy burden

here provides no shelter from the precedent of Western Tradition’s denial of fees in a much

more difficult case. This consideration should weigh in favor of the District Court’s denial

of fees. In retrospect, our inference in Western Tradition II that the case was “garden

variety” litigation should be considered as suspect as our merits decision in Western

2 During the course of the litigation, Western Tradition Partnership changed its name to American Tradition Partnership. See Western Tradition I, ¶ 9.

25 Tradition I. Regardless, at a minimum, it is irrefutable that Western Tradition’s burden of

litigation, including before the U.S. Supreme Court, far exceeded Forward Montana’s

summary judgment litigation here. See Western Tradition II, ¶ 37 (Nelson, J., dissenting)

(“. . . the undisputed result was that ATP had to incur the burden of litigating its rights—

not only in the District Court, but also in appeals to this Court and the Supreme Court—

against arguments that ‘either were already rejected in Citizens United, or fail to

meaningfully distinguish that case.’ Am. Tradition, 132 S. Ct. at 2491. In my view, given

these facts, the magnitude of the burden [of litigation] was great.”).

¶53 Next, the Court engages in a perfunctory analysis of the Doctrine’s constitutional

vindication factor and concludes that because the Plaintiffs here sought relief “purely on

constitutional grounds,” the factor is easily satisfied. Opinion, ¶ 17. This simplistic

assessment will weigh in favor of fees for virtually any constitutionally related challenge,

and thereby undermine the intended narrowness of the Doctrine’s exception to the

American Rule. This factor is supposed to assess “the strength or societal importance of

the public policy vindicated by the litigation.” Montanans for the Responsible Use of the

Sch. Tr. v. State ex rel. Bd. of Land Comm’rs (Montrust), 1999 MT 263, ¶ 66, 296 Mont.

402, 989 P.2d 800. Thus, the broader nature of the litigation is important and requires

assessment of societal impact, although courts are to do so without approval or disapproval

of the public policies advanced by the litigation, to guard against violating separation of

powers. See Western Tradition II, ¶ 16. The list of amici in Western Tradition, provided

above, also serves to demonstrate the advanced public interest and importance of the

constitutional right that was at issue—free speech. As the District Court in Western

26 Tradition reasoned on the fee issue, “the issues here are very important and are grounded

in the United States Constitution.” Although the Citizens United and Western Tradition

cases are often pigeon-holed as “corporate speech” cases, they affected a broader set of

rights, going back to cases decided long before Citizens United:

Citizens United was not just about the rights of corporations and associations to speak. More importantly, it was about the rights of citizens to hear and obtain information about candidates from diverse sources without governmental censorship. Indeed, the Citizens United decision rested on two propositions: first, that expenditures (by a person or an organization) on political communication are a form of ‘speech’; and second, that ‘citizens [have the right] to inquire, to hear, to speak, and to use information to reach consensus.’ Citizens United, 130 S. Ct. at 898 (emphasis added). These propositions were not created in Citizens United. Rather, they can be traced to Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam), and First Natl. Bank v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978).

Western Tradition II, ¶ 42 (Nelson, J., dissenting) (emphasis in original). “As a matter of

federal constitutional law, all Montana citizens—at least, every voter in Montana—

benefitted from the District Court’s decision in favor of ATP under Citizens United.”

Western Tradition II, ¶ 45 (Nelson, J., dissenting) (emphasis in original); see also Western

Tradition II, ¶ 16 (“The constitutional principles underlying this litigation cannot be

doubted.”). The Court concludes that, despite our determination in Western Tradition II,

the significant constitutional vindication at work there did not tip the scales in favor of fees,

the factor is nonetheless easily met here. In my view, this conclusion is an incorrect

application of the factor and irreconcilable with Western Tradition II. The constitutional

interests vindicated in Western Tradition served a far greater societal purpose than the issue

27 here, evidenced both by public interest and an analysis of the constitutional history of the

rights vindicated in Western Tradition. This factor should also weigh against fees.3

¶54 Perhaps because support here is weak under our precedent, the Court utilizes new

standards to justify fees: that fees should be awarded because SB 319 is “obviously”

unconstitutional, and that fees under the Doctrine should be awarded for the punitive

purpose of punishing the Legislature for legislating in “bad faith” and in violation of

legislative rules. Opinion, ¶¶ 31-32, 34. Beyond the fact that our precedent provides no

support for such considerations in application of the Doctrine, I disagree with the use of

these standards for several other reasons.

¶55 First, the law provides no gradations of unconstitutionality, nor should we create

them. A law is either constitutional or not. The Court’s holding here encourages future

parties to argue that the law they challenge is “really” unconstitutional, and for that reason

alone, such vague considerations should not be employed. However, if it is fair to

colloquially refer to a law as “clearly” or “obviously” unconstitutional, then such could

clearly be said about the Corrupt Practices Act after Citizens United was decided.

Although, for our Court, that point was only clear in hindsight, a retrospective demonstrates

the Act’s unconstitutionality was never in doubt after Citizens United. In striking down

the statute, the District Court correctly described Citizens United as “unequivocal,” as did

the Dissenters in Western Tradition I. The U.S. Supreme Court upheld these perspectives

3 The broad societal impact of the Western Tradition litigation thus also provided support for the Doctrine’s factor of “the number of people standing to benefit from the decision,” Montrust, ¶ 66, but we did not conclude that factor tipped the balance in favor of fees.

28 by summarily reversing this Court’s decision, without even requiring briefing on the merits

of the issue. See Western Tradition II, ¶ 37 (Nelson, J., dissenting) (“. . . despite the clarity

and breadth of the Citizens United decision, the Attorney General took the position that

Montana’s ban on independent expenditures is constitutional and enforceable.”). By any

measure, this turn of events demonstrated “obvious” unconstitutionality of the Act. Yet,

this Court, despite having the benefit of this hindsight at the time we decided Western

Tradition II, did not consider this “obvious” unconstitutionality of the Act to weigh in favor

of fees under the Doctrine, despite the Dissent making that very point. To be consistent,

nor should we here.

¶56 Secondly, the Court is using the Doctrine as a sword to punish the Legislature, to

deter it from wrongdoing, based in part on what I view as the Court’s revulsion at

legislative “sausage-making.” This is an inappropriate judicial consideration. The

judiciary has no business intruding into the internal operation of another branch of

government, except as the Constitution expressly permits it. The District Court properly

stayed within constitutional contours in its summary judgment ruling. See Order on

Motion for Summary Judgment, ADV-2021-611, p. 9 (“[T]he Court concludes SB 319

contains two subjects not related to campaign finance, in violation of the single subject rule

embodied in the Montana Constitution, Article V, § 11(3). The Court further concludes

SB 319 was amended in passage through the legislature to an extent the bill’s original

purpose was changed, in violation of the Montana Constitution, Article V, § 11(1).”).

However, in contrast, the Court veers off the constitutional pathway, indicting the

Legislature’s procedural use of a free conference committee as a violation of legislative

29 rules, the timing of legislative amendments (“two days before the Legislature adjourned”),

the use of prior bills as source material for the challenged amendments (“[s]ignificantly,

some amendments consisted of provisions that had already been defeated in other Bills

during the legislative session—one of them having failed mere days before the free

conference committee meeting”), the length of a committee meeting (a “17-minute

committee meeting”), engaging in actions “generally discouraged” by legislative rules or

in violation of cited rules, and that such behavior was from “legislators with more than 42

years of Montana state legislative experience between them.” While such aspects of the

legislative process may be mortifying to some, I find nothing unusual here. More to the

point, none of these are constitutional violations. What violates the Constitution is the

Court’s use of these things in its reasoning. The Legislature is free to violate its own

internal rules all day long, and it is none of this Court’s concern unless a constitutional

provision has been violated. There are no constitutional prohibitions on legislators making

decisions at the last minute, and I completely disagree that it is legally “significant” that

prior bills were used as sources for amendments—even bills that failed “mere days” before.

There is no prohibition against legislators engaging in behaviors that they have enough

experience to avoid, or against conducting a 17-minute meeting. Indeed, it could just as

well have been a five-minute meeting. As we have explained, where the shoe was on the

other foot, and we resisted the Legislature’s effort to control the judiciary’s internal

operations:

The totality of the effect of [the challenged statute] is to interfere with the internal operations of the judiciary in the same manner as if the judiciary would impose limitations on the legislature as to its internal operations, such

30 as the number of committees, the time within which a committee must act, the time each legislator must attend the sessions, limiting the time of discussion, limiting the time one bill must pass from one house to the other and the like. All of these legislative functions are internal with the legislature and the constitution authorizing the legislature to govern its affairs without interference from the other constitutional branches of government.

Coate v. Omholt, 203 Mont. 488, 498, 662 P.2d 591, 596-597 (1983) (emphasis added). In

my view, the use of “legislative norm” violations, including the Court’s repeated citation

to internal legislative rules, Opinion, ¶¶ 28-29, to establish wrongdoing, is an inappropriate

intrusion into another branch and sets a troubling precedent. It is only the requirements of

the Constitution we are to be concerned about. More broadly, the Court’s use of the

Doctrine as a measure to punish the Legislature is a drastic departure from the purpose of

the Doctrine as established in our precedent.

¶57 The Court does not fault the Attorney General for defending SB 319. I agree and

find the Attorney General’s action here to be measured and reasonable, including waiving

the right to appeal and bringing the litigation to a close after the District Court’s adverse

ruling. Attorney fees are not warranted under § 25-10-711(1), MCA, which, while not

dispositive, we have explained “serves as a guidepost in analyzing a claim for fees under

the private attorney general doctrine.” Western Tradition II, ¶ 18.

¶58 The equitable nature of the Doctrine makes it critical that courts ensure it is not

applied through a lens of judicial endorsement of the litigation, that is, granting fees where

a court favors a plaintiff’s constitutional objectives, while rejecting fees where a court

disfavors a plaintiff’s constitutional objectives. Justice demands that all parties receive

equal treatment under the Doctrine. In my view, application of the Doctrine’s factors, as

31 discussed herein, clearly demonstrates that Western Tradition presented a far more

appropriate case for an award of fees than the case made here, and that this case is the more

“garden variety” constitutional litigation that does not satisfy our precedent for an award

of fees. Given that precedent, and the need for fairness, I would conclude the District Court

did not abuse its discretion by denying them here.

/S/ JIM RICE

Justice Dirk Sandefur joins in the dissenting Opinion of Justice Rice.

/S/ DIRK M. SANDEFUR